Southern Pac. Co. v. Kauffman, 6247.

• Decision Date: 08 May 1931
• Docket Number: No. 6247.,6247.
• Parties: SOUTHERN PAC. CO. v. KAUFFMAN et al.
• Court: U.S. Court of Appeals — Ninth Circuit

50 F.2d 159 (1931)

SOUTHERN PAC. CO. v. KAUFFMAN et al.

No. 6247.

Circuit Court of Appeals, Ninth Circuit.

May 8, 1931.

Guy V. Shoup, Dunne, Dunne & Cook, Christian F. Kimball, and Thomas B. Dozier, all of San Francisco, Cal., for appellant.

Lionel B. Benas, Edward S. Bell, Kilpatrick & Goodman, Frank E. Kilpatrick, and Booth B. Goodman, all of Oakland, Cal., for appellees.

Before RUDKIN, WILBUR, and SAWTELLE, Circuit Judges.

WILBUR, Circuit Judge.

The appellee was severely injured in a collision between an automobile in which he was riding and a passenger train of appellant's, occurring at approximately 2 o'clock p. m. July 19, 1927, about one mile east of Los Banos, Cal., at a grade crossing known as Canal Farms Crossing. At the time of the collision, the appellee was asleep upon the back seat of the Dodge car, which was being driven by his mother. With the mother in the front seat was appellee's father, and in the rear of the car with appellee were his five brothers and sisters. At the point of collision the railroad crossed near the point of intersection of the center lines of two highways which were at right angles with each other. The wigwag crossing signal established by the appellant at the crossing had two arms at right angles to each other, operating in planes perpendicular to the respective highways and was situated in the intersection of the highways and upon the railroad right of way. The highway upon which the Dodge automobile was being operated by appellee's mother was a main thoroughfare 60 feet wide, paved with concrete surface 16 feet wide. It intersected the appellant's railroad at an angle of about 30 degrees (29° 45'). The automobile was approaching the intersection from the east, and the railroad train from about west-northwest, making the angle of approach 150° 15'.

Appellee stated his cause of action against the Southern Pacific Company in three counts. The first count alleges that the appellant negligently operated and maintained the train on its railway tracks, and negligently collided with the automobile in which the appellee was riding. The second count alleges that the appellant negligently permitted trees and shrubbery to grow upon its right of way near said crossing in places which obstructed the view of drivers of automobiles upon the highway, and that these obstructions prevented appellee's mother from having a view of defendant's tracks and trains thereon before driving upon the crossing. The third count alleges that the defendant negligently and carelessly permitted the electric wigwag signal maintained at the crossing to become out of repair to such an extent that the said signal failed to work or operate as a signal device. Such failure was assigned as the proximate cause of the accident.

The questions at issue are as to whether or not the whistle of the passenger train was blown as a warning upon approaching the crossing; as to whether or not the locomotive bell was rung; whether or not the bushes which it was claimed obstructed the view of plaintiff's mother toward the approaching train in fact did so, and, if so, whether or not such trees and bushes were upon the right of way of the railway company; and whether or not the wigwag was in actual operation immediately before and at the time of the collision, and, if not, whether its failure to operate was due to negligence in its maintenance.

It appears from the evidence that the train was being operated at from 25 to 30 miles per hour, that until the instant of the accident the attention of appellee's father was wholly directed to the examination of a road map, and that he did not observe the locomotive until the automobile was on the railroad track and immediately in front of the locomotive. The accident occurred in broad daylight on a clear day. The crossing was marked not only by the usual railway crossing signal, two bars at right angles forming an X, mounted on a vertical post, and marked "Railroad Crossing, Look Out for the Cars," but also by a circular disc mounted on a pole with the letters "R. R." and two heavy lines intersecting at right angles upon the disc 300 feet from the crossing, as required by the California Vehicle Act (Cal. Stat. 1923, pp. 517, 555, § 117). The wigwag was in a conspicuous position to warn travelers upon the highway, and was plainly visible for a long distance before the crossing was reached; the line of telegraph poles and wires along the railroad also indicated the crossing. At the crossing was the usual cattle guard. The paving in the highway approached the tracks at a slight grade, plainly visible as one approached upon the highway. The highway and railroad were straight for a long distance as the automobile and railway train approached the crossing. According to the testimony of the appellee's father and the fireman of the locomotive, the Dodge car stopped at a distance of 15 feet from the railway track. At that time the locomotive of the passenger train, which collided with the automobile, was about 100 feet from the crossing and within less than three seconds thereof. The Dodge car started forward "jerkily" and stopped, or nearly stopped, or stalled, on the track immediately in front of the locomotive, and the collision occurred almost instantly thereafter. Appellee's father testified that his attention was attracted by the stopping of the automobile in which he was riding, that it started forward "jerkily," that he glanced downward and saw his wife's hand on the emergency brake, and that when he looked up the locomotive was towering above him and the collision occurred almost at that instant. A truck was following the Dodge car in question at a distance of about 100 feet, and was driven by appellee's brother, who testified that he was observing the car driven by his mother and also observing the wigwag; that he saw the Dodge car come to a complete stop and then go forward. He testified that the wigwag was not operating at that time, and it is upon his testimony that appellee largely depends to establish the charge of negligence in taking care of its wigwag signal at that crossing. The fireman of the locomotive also testified that the automobile came to a complete stop before it reached the crossing and that it then moved forward. There is no testimony that the automobile did not stop, although, for purposes of impeachment, a statement made by the fireman in the report of the accident to the company was produced. While this statement was consistent with the idea that the automobile never came to a complete stop, it was not entirely inconsistent with the proposition that the automobile stopped and started up. Assuming that this statement of the fireman conflicted with his testimony, its utmost effect would be to eliminate his testimony on that subject which had corroborated that of the appellee's father and brother. Such a statement would not be competent evidence of the facts therein stated so as to create a conflict with the testimony of appellee's father and brother to the effect that the automobile in which appellee was riding came to a full and complete stop before reaching the railroad tracks. The father testified that this stop occurred while the automobile was at a point 15 feet from the railroad tracks. The testimony of the fireman confirms this as the point at which the automobile stopped. The testimony of the son is not inconsistent with that of the father as to the point where the automobile stopped.

We will first deal with the cause of action based upon the charge of negligence in the maintenance of the wigwag and in allowing it to get out of repair. The only evidence that the wigwag was out of repair is that of the appellee's brother, who testified that the wigwag was not operating at the time of the accident. We do not overlook the testimony that some one was seen on the wigwag signal the next morning after the accident, or the evidence that fire was seen near its conduits that same afternoon. It was so constructed that it should operate. But it has been properly held that the mere failure of such a wigwag to operate automatically upon the occasion of an accident is not evidence of negligence on the part of the railroad company. Vaca v. S. P. Co., 91 Cal. App. 470, 267 P. 346; Kingsbury v. B. & M. R. R., 79 N. H. 203, 106 A. 642, 643. It is proper to consider the fact, if it be a fact, that the signal did not operate, in measuring the care exercised by the traveler in negotiating the crossing, and it is therefore relevant on the question of contributory negligence, but, without more evidence tending to show negligence in the maintenance of the wigwag, it is insufficient to establish such negligence. To rebut any inference of negligence which might arise from the failure of the wigwag to operate at the time and place in question, the appellant, although claiming and introducing many witnesses to establish that the wigwag did operate properly at the time of the accident, presented the testimony of the inspector whose duty it was to inspect the signal, and this witness testified that he had inspected the apparatus daily for many days previous to the accident and found and reported that the apparatus was working properly. He also testified that the day after the accident he made a careful inspection and test of the signal and it was working perfectly, and that there was no defect in it. At this juncture appellant offered a witness who frequently used the highway at this crossing and sought to prove by him that for a considerable period of time previous to the accident the wigwag was working properly. The witness testified that he crossed the track at this crossing "quite often before July 19, 1927; that he crossed on an average of once a day, and sometimes two or three times a day; that he had occasion to cross there when a train was approaching the crossing several times." He was then asked: "When there was a train approaching was or was not the wigwag...